State v. Peck

• Decision Date: 16 November 1928
• Docket Number: 6317.
• Citation: 271 P. 707,83 Mont. 327
• Parties: STATE v. PECK.
• Court: Montana Supreme Court

271 P. 707

83 Mont. 327

STATE v. PECK.

No. 6317.

Supreme Court of Montana

November 16, 1928

Appeal from District Court, Fergus County; John C. Huntoon, Judge.

Criminal proceeding by the State of Montana against Clinton Peck. From an order discharging defendant at close of evidence, and excusing jury from further consideration of case on ground of failure of proof, the State appeals. On defendant's motion to dismiss appeal. Appeal dismissed.

L. A Foot, Atty. Gen., and I. W. Choate and Stanley R. Foot, Asst Attys. Gen., for the State.

Belden & Dekalb, Merle C. Groene, and Roy C. Ayers, all of Lewistown, for respondent.

MATTHEWS J.

One Clinton Peck was placed on trial in Fergus county on an information charging him with grand larceny. At the close of the taking of testimony, on motion of defendant, the court ordered him discharged and excused the jury from further consideration of the case on the ground of failure of proof and on the stated belief of the trial judge that, should the jury be permitted to consider the case and it should return a verdict of guilty, the court would not be justified in pronouncing sentence thereon, or in denying defendant a new trial if motion therefor was made.

We have before us a record made as on an appeal by the state, and a brief by the Attorney General, in which error is predicated upon the court's refusal to submit the case to the jury. Defendant has moved to dismiss on the ground that the order made is not an appealable order.

1. The right of appeal in a criminal case is unknown to the common law and exists only by virtue of constitutional or statutory enactment. 17 C.J. 13. The only provisions which we have for an appeal by the state in criminal actions are:

"1. From a judgment for the defendant on a demurrer to the indictment or information. 2. From an order granting a new trial. 3. From an order arresting judgment. 4. From an order made after judgment, affecting the substantial rights of the state. 5. From an order * * * directing the jury to find for the defendant." Section 12108, Rev. Codes 1921.

It is clear that the order made does not fall within any one of the five subdivisions above set out, and this fact was, evidently, recognized by the county attorney, who drafted the notice of appeal herein, as he follows his notice of appeal from the order made by the statement that the state also appeals from that certain order "directing the jury to find for the defendant." No such order was made, and this latter portion of the notice must be disregarded. In resistance to the motion to dismiss, however, the Attorney General argues that the order made was "in effect" such an order as that last designated. If he can maintain this position, an appeal lies under subdivision 5 above; otherwise, the motion to dismiss must be sustained, since, in the absence of a permissive statute, no appeal lies from such an order as was made by the court. 17 C.J. 41, and cases cited; People v. Adams, 16 Hun (N. Y.) 549; State v. Smith, 49 Kan. 358, 30 P. 522; State v. Hickerson, 55 Kan. 133, 39 P. 1045; State v. Marshall, 124 Mo. 483, 27 S.W. 1107; State v. Smith, 94 Ark. 368, 126 S.W. 1057.

In State v. Casteel, 71 Mont. 524, 230 P. 585, this court entertained an appeal from such order as that under consideration, made at the close of the state's case, but therein no motion to dismiss was made and no question of jurisdiction raised, and that decision cannot be considered as a precedent here.

2. In Kline v. Murray, 79 Mont. 530, 257 P. 465, we held that the dismissal of the case, after the court had refused to entertain a motion for a directed verdict, was to all intents and purposes a judgment of dismissal upon such a verdict, but that was a civil action wherein the rules hereinafter announced do not apply.

In granting the right of appeal to the state in criminal cases, and construing statutes giving such right, caution must be observed not to run counter to such constitutional prohibitions as that no person shall "be twice put in jeopardy for the same offense." Article 3, § 18, Constitution of Montana. Mr. Bishop, in his work on Criminal Law, points out that the impediment of jeopardy cannot be removed by legislation, and that, therefore, "a statute which, by the device of an appeal by the state, undertakes to authorize a retrial of one acquitted on a valid indictment, is void," and that, "even where the acquittal is procured by an erroneous direction of the judge at the trial, it will stand against all doings for its reversal without the defendant's consent, whatever their form and from whatever source proceeding." Bishop on Criminal Law, § 1026. "If all things are regular down to the attaching of jeopardy at the trial, the state, in the absence of a waiver by the defendant, is not entitled to bring him into jeopardy again by procuring the correction of any error of its own or of the court at the trial or afterward." Id. § 1027.

For the above reasons, and as they are in derogation of the common law, statutes granting the right of appeal to the state must be strictly construed, and the right limited to those instances mentioned (Territory v. Laun, 8 Mont. 324, 20 P. 652), and no appeal will lie unless it is clearly authorized (People v. Zobel, 54 Colo. 284, 130 P. 837) and "unequivocally conferred" (State v. Craig, 223 Mo. 201, 122 S.W. 1006); nor can the power granted be enlarged by construction of the statute ( State v. Weathers, 13 Okl. Cr. 92, 162 P. 239). The rule of strictissimi juris is universally applied in this class of cases.

Under such circumstances, can we say, for the purpose of permitting an appeal, that the order made-admittedly not an appealable order-is an entirely different order, from which different results would flow, merely because we may feel that the order made was not the order which should have been entered? The situation here is not unlike that discussed by this court in State v. Northrup, 13 Mont. 522, 35 P. 228. There the trial court granted the defendant a new trial on the ground, among others, that the indictment was insufficient. The state appealed, although the statute then permitted such an appeal only from a judgment setting aside an indictment, an order arresting judgment or upon a question of law reserved by the state. It was there contended that the appeal might be considered on the theory that the order made was "in effect" either an order quashing the indictment or one arresting judgment. Mr. Justice De Witt, speaking for the court, said that the district court did not, "even in effect," either quash the indictment or arrest a judgment, but granted a new trial, and therefore the motion to dismiss must be granted, although he stated that insufficiency of the indictment was not a ground for granting a new trial, and, referring to the trial judge, said:

"It is true that he makes this a ground for granting a new trial, as he ought not, and he does not make it a ground for an arrest of judgment, as he should have done. * * * The ruling was not one that was attentive to the practice, and it did not distinguish the nature of the matter which the court undertook to handle."

The basis of the Attorney General's contention in the instant case-that the order made is "in effect" an order directing a verdict-is...